Juniper Faces Blue Spike’s “Assembly-Line Litigation Campaign”

In January 2017, Blue Spike, LLC (“Blue Spike”) filed what has been described as the largest patent infringement case in the U.S.[1] Blue Spike asserted 26 patents containing 656 claims against 113 products owned by Juniper Networks, Inc. (“Juniper”). In April 2017, Blue Spike amended its complaint to reduce its number of claims, but even so, Blue Spike continues to assert 14 patents against 113 products. One of the accused products is Juniper’s cloud management platform, Contrail.

Blue Spike’s “kitchen sink” approach is not unique to its suit against Juniper. Since 2012, Blue Spike has filed over 130 patent infringement cases in the Eastern District of Texas, and many of these cases have involved a significant number of claims.

Figure 1. Patent infringement cases filed by Blue Spike, LLC.

The vast majority of these cases have settled, but Adobe successfully fought against Blue Spike’s infringement allegations and is now asking the Federal Circuit to award Adobe attorney’s fees for what Adobe has described as a “baseless” lawsuit that was part of an “assembly-line litigation campaign” intended to “extract nuisance value settlements from Adobe and other defendants.”[2] Google also successfully fought against Blue Spike’s infringement allegations by invalidating five of Blue Spike’s patents under 35 U.S.C. § 101. Prior to this invalidation, the invalidated patents had been asserted by Blue Spike in over 100 cases.

Currently, in Blue Spike’s litigation against Juniper, Juniper has requested that the case be transferred from the Eastern District of Texas to the Northern District of California. Juniper has noted that this would be the fourteenth Blue Spike case transferred out of the Eastern District of Texas and the eighth transferred to the Northern District of California. Juniper initially moved to dismiss the case due to Blue Spike’s failure to allege a proper basis for venue under the Supreme Court’s TC Heartland decision. Juniper subsequently withdrew its motion to dismiss for improper venue and instead filed its now pending motion to transfer. The parties’ briefs provide different accounts of the events surrounding the motion to dismiss and its subsequent withdrawal. However, Juniper has a facility in Plano, TX, which is in the Eastern District. The evolving venue jurisprudence based on TC Heartland and the existence of this Plano facility likely factored into Juniper’s decision to withdraw its motion to dismiss.

The Blue Spike litigation and, particularly, its suit against Juniper is interesting for several reasons. First, it appears that Blue Spike is driving settlements based, at least in part, on the sheer volume of its infringement claims. A non-practicing entity seeking nuisance value settlements is nothing new, but the size of the lawsuit against Juniper is notable. It will also be interesting to see how the venue arguments play out here, given the heightened focus on venue after the TC Heartland decision and defendants’ efforts to transfer out of the Eastern District of Texas. Voluminous infringement allegations and venue transfers are relevant issues for patent infringement defendants, generally, including those in the cloud computing space.

[1] Notably, Blue Spike has challenged the sources relied upon by Juniper in making this statement, but it has not challenged the factual accuracy of the statement. See Blue Spike’s Surreply to Juniper Networks’ Motion to Transfer Venue [Dkt. 17], Blue Spike, LLC v. Juniper Networks, Inc., No. 6:17-cv-00016-RWS-KNM (E.D. Tex. Sept. 27, 2017).